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Shambolic Copyright Amendment Bill will favour Google and its ilk

Who would benefit from the skewed agenda being railroaded through parliament? Google, of course

19 October 2018 - 05:03 Sadulla Karjiker

If President Cyril Ramaphosa is serious about stimulating the economy and transforming the executive into an effective, competent and accountable organ of government, he needs to remind trade and industry minister Rob Davies of that fact. When it comes to the custodianship of our intellectual property law, it does not appear that the department of trade and industry has received that message.

On October 12 the portfolio committee on trade and industry yet again drip-fed another series of proposed amendments to the Copyright Act of 1978. In its now familiar and highly questionable approach to passing potentially damaging and far-reaching legislation, stakeholders were given a mere 10 days to make submissions on the latest proposed amendments.

There is no point in mincing my words about the passage of the proposed Copyright Amendment Bill thus far: it has been shambolic and would embarrass a banana republic. The reason the portfolio committee arrogated to itself the responsibility of drafting the bill was because the draft bill produced by the department was so poorly drafted that it resulted in wide-ranging criticisms from various stakeholders. Well, the portfolio committee’s efforts have quite frankly not been much better. Not only has the technical drafting been poor, but the department, and now the portfolio committee, continue to try to railroad a particularly skewed agenda through parliament.

If it is any consolation, we are not the only country being urged to jettison fair dealing in favour of fair use. It seems that ‘sponsored research’ is the way to go, even in places such as New Zealand.

The bill does not reflect a well-considered, balanced view of interests concerning copyright protection and suggests a lack of understanding of the rationale for copyright protection. Moreover, it amply demonstrates that there is no culture of accountability at the department, and the portfolio committee (and, by extension, parliament) appears to be failing to hold those responsible for demonstrable incompetence — and possibly reckless and damaging actions — accountable.

For example, it is proposed that, in relation to the exceptions to copyright infringement, SA departs from our current system of “fair dealing” and that we adopt the US system of “fair use”. Both the department and the committee realise that this would be a significant policy shift, which probably has far-reaching unintended consequences, but this has not prompted them to reconsider the proposed amendments.

If one were to ask why there appears to be undue haste in seeking to pass the bill without regard to proper consultation or impact assessments, the answer could be provided by drawing on an old notion credited to the Roman orator and statesman Cicero. In evaluating a policy change, we would be well served to ask a question Cicero said should be asked about all crime: “Cui bono?” In other words, who stands to benefit from what is proposed? Has an outside interest captured the department’s (and the committee’s) agenda?

Rather curiously, a group of foreigners appears to have been influential in the passage of the bill and wastes no opportunity in championing its supposed virtues. A good example of the attempts to convince us about the superiority of the system of fair use is that of Sean Flynn, a professor at the American University Washington College of Law in Washington DC, with his article published in 2017 in Business Day. Why would an American academic be so interested in proposed SA legislation? Are there no fertile avenues left in US law that could occupy the minds of US academics?

If it is any consolation, we are not the only country being urged to jettison fair dealing in favour of fair use. It seems that “sponsored research” is the way to go, even in places such as New Zealand. In 2018 Deloitte in New Zealand produced a report aimed at convincing the New Zealand government to move to a fair-use system. The commissioning party of the Deloitte report is a big clue as to the identity of at least one party that seeks to get more jurisdictions to move to a fair-use system: Google. It spares no expenses in doing so.

Unsurprisingly, we have also seen Google sharing a platform with the department. Yes, you’ve guessed it: a fair-use system is more beneficial to Google, especially in relation to its services, such as YouTube. Fair use would give it greater room to erode the protection copyright owners have at present and increase its bargaining power over African artists and creators.

In contrast to what is being proposed in SA, the EU has, finally, awoken to the insidious practices of companies such as Google. The EU is proposing to impose greater obligations on such service providers to prevent copyright infringements.

Intellectual property rights serve to incentivise innovation and creativity, which is of fundamental importance if we are to grow our economy in the modern era.

Foreign academics, who are clearly pursuing a particular agenda and have little to no knowledge of our legal system, appear to have had greater access to department officials and the portfolio committee than local stakeholders and academics.

This basic notion appears not to have registered with the department or the committee. Instead, they are intent on diluting intellectual property rights without regard for the consequences for the country’s future growth prospects. Our greatest chance of boosting our economy in the long run is by growing the knowledge economy. In a real sense, the proposals could even be said to follow a racist paradigm: SA authors and copyright owners cannot expect the same copyright protection as that afforded to their counterparts in Europe or the US.

Moreover, these harmful legislative initiatives are being developed in the most problematic and dysfunctional manner conceivable. Foreign academics, who are clearly pursuing a particular agenda and have little to no knowledge of our legal system, appear to have had greater access to department officials and the portfolio committee than local stakeholders and academics. Why are their views being taken so seriously? These academics don’t appear to have a comparable level of influence in their home jurisdictions.

Rather worryingly, the impression is that the trade and industry minister has fallen asleep behind the wheel and has failed to exercise proper supervision over his department. How can he be satisfied that the process thus far has been credible? Is it possible for a parliamentary portfolio committee to play a credible oversight function when it has produced more of the proposed bill than the relevant government department? Is that not, at the very least, more an indication of the fact that what parliament received from the department was not work of an acceptable standard and that it should by now have been rejected, with the appropriate action taken at the departmental level where necessary?

Untold harm is being done to our state institutions and the economy, with the only corrective action being hugely expensive, ex post commissions of inquiry. It is time now for the minister to ensure that the department and committee restore some credibility to the process. For a start, he should demand a full report (which should be made public) on why this process has been so shambolic and skewed. We need to know what information the department (and the committee) relied on for their proposals and who was instrumental in shaping these proposals. Following such a report, the department should be sent back to the drawing board to start a legislative process that will pass constitutional muster.

Instead of stakeholders having to make further written submissions, they deserve an immediate and appropriate response from the minister, which would draw a line under this unsavoury saga.

• Karjiker is a professor at Stellenbosch University who holds the Anton Mostert chair of intellectual property law.